Citation Nr: 0805527
Decision Date: 02/15/08 Archive Date: 02/26/08
DOCKET NO. 07-08 054 ) DATE
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On appeal from the
Department of Veterans Affairs, Nebraska-Western Iowa Health
Care System
THE ISSUE
Entitlement to payment or reimbursement of unauthorized
medical expenses incurred on April 10, 2006.
REPRESENTATION
Appellant represented by: Vietnam Veterans of America
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Carolyn Wiggins, Counsel
INTRODUCTION
The veteran served on active duty from September 1968 to
April 1971 and from December 1990 to June 1991.
This appeal arises from a June 2006 administrative
determination of the Department of Veterans Affairs (VA),
Nebraska-Western Iowa Health Care System, which denied the
benefit sought on appeal.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. On April 10, 2006, the veteran incurred medical expenses
at a private hospital for the treatment of abdominal pain.
3. Prior to the actual care rendered at the private hospital
on April 10, 2006, the cost had not been authorized by VA.
4. At the time care was rendered on April 10, 2006, the
veteran had seven service-connected disabilities, including a
bilateral knee disorder, hypertensive vascular disease,
paralysis of the sciatic nerve, tinnitus, post-traumatic
stress disorder and diabetes mellitus.
5. The private medical care rendered on April 10, 2006, was
for a medical emergency of such a nature that a prudent
layperson could reasonably expect the absence of immediate
medical attention to result in placing the health of the
individual in serious jeopardy.
6. On April 10, 2006, federal facilities were not available
to render the care which the veteran received at the private
facility.
CONCLUSION OF LAW
Criteria for payment or reimbursement of unauthorized medical
expenses incurred at a private hospital on April 10, 2006,
have been met. 38 U.S.C.A. §§ 1725, 1728 (West 2002); 38
C.F.R. §§ 17.120, 17.1002 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board finds that VA has substantially satisfied the
duties to notify and assist, as required by the Veterans
Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a). To the extent that there may
be any deficiency of notice or assistance, there is no
prejudice to the veteran in proceeding with this appeal given
the fully favorable nature of the Board's decision.
The veteran contends that he should be reimbursed for the
cost of medical treatment on April 10, 2006, because he was
advised by VA personnel to seek emergency treatment. He
credibly testified before the Board that he believed his
health was in danger on the day in question as he was
experiencing abdominal pain so severe he was unable to stand
upright and believed that prompt treatment was required.
At the time care was rendered on April 10, 2006, the veteran
had seven service-connected disabilities, including a
bilateral knee disorder, hypertensive vascular disease,
paralysis of the sciatic nerve, tinnitus, post-traumatic
stress disorder and diabetes mellitus. The veteran's has
testified he is followed by his primary care taker, Dr. D.,
at the VA Medical Center in Omaha.
On April 10, 2006, the veteran was experiencing severe
abdominal pain. He was doubled over in pain. His spouse
called the VA and was routed to a voice mail, which
instructed them to take the veteran to the emergency room if
it was an emergency. They interpreted this as indicating
that emergency services were unavailable at the Omaha VA
Medical Center. The veteran was taken to the emergency room
at the Bergan Mercy Medical Center in Omaha, Nebraska.
Records indicate the veteran was treated for stomach cramps.
A computed tomography scan revealed pericolonic stranding
consistent with edema or inflammation associated with the
ascending colon. The veteran was given Dilaudid for pain
relief and released to return home.
In adjudicating a claim for reimbursement of medical
expenses, the Board must first make a factual determination
as to whether VA gave prior authorization for the non-VA
medical care that the veteran received in a private facility.
See 38 U.S.C.A. § 1703(a); 38 C.F.R. § 17.54. In this case,
it is not contended that VA specifically agreed to pay the
medical bills incurred at the private facility. It is noted
that there are specific formalities which must be followed
under 38 C.F.R. § 17.54 that were not complied with here and,
as a result, proper advance authorization from VA was not
obtained. Therefore, the Board must conclude that prior
authorization for the private medical treatment received on
April 10, 2006, was not obtained pursuant to 38 C.F.R. §
17.54, and that payment is not warranted for expenses
incurred in conjunction with that treatment under 38 U.S.C.A.
§ 1703.
Nevertheless, reimbursement of the expenses of care or
services, not previously authorized, in a private or public
(or Federal) hospital not operated by VA, may be paid on the
basis of a claim timely filed, if the following criteria are
met: (1) the veteran has a service-connected disability; (2)
there is a medical emergency of such nature that delay would
be hazardous to the veteran's life or health; and (3) VA or
other Federal facilities were not feasibly available, and an
attempt to use them beforehand or obtain prior VA
authorization for the services required would not have been
reasonable, sound, wise, or practicable, or treatment had
been or would have been refused. See 38 U.S.C.A. § 1728; 38
C.F.R. § 1720. In order to be eligible for reimbursement of
unauthorized medical expenses under 38 U.S.C.A. § 1728, all
three requirements must be met.
It is the defined and consistently applied policy of VA to
administer the law under a broad interpretation, consistent,
however, with the facts shown in every case. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding service origin, the degree
of disability, or any other point, such doubt will be
resolved in favor of the claimant. By reasonable doubt is
meant one which exists because of an approximate balance of
positive and negative evidence which does not satisfactorily
prove or disprove the claim. It is a substantial doubt and
one within the range of probability as distinguished from
pure speculation or remote possibility. See 38 C.F.R.
§ 3.102.
Having reviewed the evidence, the Board finds that the
veteran is eligible for payment or reimbursement of the
emergency room treatment expenses incurred on April 10, 2006,
pursuant to 38 U.S.C.A. § 1728 because he has satisfied all
three of the required criteria. Specifically, the veteran
had seven service-connected disabilities at the time of the
treatment in question, he reasonably believed that a delay in
receiving treatment would be hazardous to his health due to
the severe abdominal pain, and a VA or other Federal facility
was not available as VA medical facilities were either too
far away or not equipped to provide emergency care.
Moreover, when he attempted to contact VA medical personnel
by telephone to determine where to obtain treatment, he was
advised to seek emergency treatment, which in this case was
the private hospital. Resolving all reasonable doubt in the
veteran's favor, there simply is nothing in the record to
refute his assertions that he believed that failure to obtain
prompt care would be hazardous to his life or health.
In sum, the Board finds that the veteran meets the criteria
for payment or reimbursement of unauthorized medical expenses
resulting from his emergency treatment on April 10, 2006,
because the preponderance of the evidence shows that the
treatment received that date was for symptoms perceived to be
so serious as to require immediate medical attention to avoid
serious impairment and a VA facility was not available. As
such, the benefit sought on appeal is granted.
ORDER
Entitlement to payment or reimbursement of unauthorized
medical expenses incurred on April 10, 2006, at the Bergan
Mercy Medical Center is granted, subject to the laws and
regulations governing the award of monetary benefits.
____________________________________________
Kristi Barlow
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs